Summary

Applying the standard in Moy v Pettman Smith (A Firm) [2005] UKHL 7 , (2005) 1 WLR 581, a barrister had not been negligent in the advice he had given to a tenant regarding the desirability of serving a protective notice under the Leasehold Reform Act 1967.

Facts

The claimant (J) brought a claim in negligence against the defendant barrister (G). J had been the tenant under a long lease of a property when he served a notice (the 1994 notice) on the landlord under the Leasehold Reform Act 1967 claiming the freehold. The landlord admitted the claim. The landlord subsequently applied for declarations that their admission of J's claim was not binding and that the 1994 notice was invalid. The basis of the landlord's application was that J's representation that the property subject to the notice had been his only or main residence was untrue, as a second property had been occupied as his main residence. The landlord asserted that J had deliberately concealed that material fact. G settled an answer to the landlord's application and advised J that he had a strong case. At the trial of the action between J and his landlord, the judge held that J's failure to disclose his residence at the second property had been highly material to the landlord's decision to admit the 1994 notice and that notice would be set aside. In the present proceedings, G claimed that he had considered the possibility of serving a further protective notice under the 1967 Act but had dismissed this, as it would not have been possible to frame the notice in such a way that it did not falsify the 1994 notice or leave the new notice equally vulnerable to attack. The issues for determination were (i) whether G had been negligently remiss in not exploring with J the possibility of serving a further protective notice, and (ii) whether G had been negligently over-optimistic in the advice he had given as to the prospects of success at trial.

Held

(1) It was not the task of the court to decide whether G's thought process, which had led to him not advising J to serve a protective notice, was wrong but whether it was wrong in such a way as to demonstrate that it was outside the range of what could be expected from reasonably competent counsel of G's seniority and purported experience, Moy v Pettman Smith (A Firm) (2005) UKHL 7 , (2005) 1 WLR 581 applied. G's thought process, if wrong, was not so wrong as to demonstrate negligence. It was difficult to see how any new protective notice would have significantly improved J's position but relatively easy to see how it might have worked to his disadvantage in relation to establishing the validity of the 1994 notice. Accordingly, G had not been negligent in failing to advise J as to the desirability of serving a protective notice. (2) With the benefit of hindsight, G's description of J's case as being very strong could be seen as over-optimistic. However, that was very different from finding that it had been negligently given at the relevant time. G's careful analysis of where the burden of proof lay, so far as concerned the landlord's ability to withdraw from its admission of J's claim, entitled G to conclude that J's case was a strong one. In his desire to simplify matters, J had not provided a complete picture when instructing G about the places where he had resided. If, as a result of J not providing that information, G had been induced to give advice that could be described as over-optimistic, it was not possible for J to subsequently complain about that. Accordingly, G had not been negligent in his advice as to J's prospects of success at trial.

Judgment for defendant.